Refused LPA

Long story short - Filled in form, paid fee, downloaded paperwork, had to get doctor to sign it, Mum was spoken with all in agreement, told us who she wanted to have the LPA, doctor came, he asked her if she understood everything, she took a deep breath (it was at this point I knew she was going to be acting daft) "No I don't, come back next week and maybe I will know more" That was it doctor refused to sign stating she didn't have the capacity to understand what was going on. Sorry and goodbye! The trouble was she knew and knows what she has done. Now it is on her medical records and I don't know where to turn, she is having carers or caregivers for 6 hours a day which she is paying for, she is one of the unfortunate people who saved and paid into a system all there lives and now she is penalised and paying for her care. What can I do or she do to access her funds to pay for her care? After a year there will be only her bungalow left and no savings is she entitled to benefits or help? Also she was in a the process of changing her will, what would happen to that? Any help on these matters would be greatly appreciated. Apologies for being long winded.
 

nitram

Registered User
Apr 6, 2011
30,319
0
Bury
Capacity can vary, your Mum only has to have capacity at the time of signing.

As her GP has judged her to be incapable, you could see if you can get a specialist doctor to assess her and act as certificate provider if they think she has sufficient capacity.

Failing that It will have to be the COP deputy route.

Regarding the will.
To change it you will have to find a solicitor who considers your Mum to have testamentary capacity.
 
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malengwa

Registered User
Jan 26, 2017
258
0
We didn't involve a gp, has that ruling changed in the past year? It was a friend of mums that was the certificate provider.

Regarding the will, I don't suppose there is much you can do. Mums was written years ago before a family feud but in all honesty there won't be much left anyway, if anything.
 

nitram

Registered User
Apr 6, 2011
30,319
0
Bury
We didn't involve a gp, has that ruling changed in the past year?

The requirement has not changed, however having been considered to lack capacity by a GP it would be best to go for a skills based rather than a knowledge based certificate provider.
 

Shedrech

Registered User
Dec 15, 2012
12,649
0
UK
hi Jools62
are you sure this will be recorded as your mum 'no longer has capacity' on her medical records, may not be recorded or may be 'didn't have capacity at that time' - of course, without POA for health & welfare or your mum's permission for her GP to speak with you, you may not be able to find out - if there is no record, might you try again with a certificate provider who is a friend and has known her well enough to understand her; this doesn't have to be a medical professional; though nitram's point in post 4 needs to be considered
might it be worth quietly and in simple terms pointing out to your mum what she has done eg 'The doctor now believes you aren't capable of looking after your own affairs so you can't make any decisions yourself only Social Services and the doctor can. I can't do anything on your behalf now as I can't be your Attorney and your bank will freeze your accounts. Someone will have to apply to be your Deputy which will cost you a lot of money, that someone can be chosen for you and may not even be me.' - it may, if she does have capacity to understand, as you appear to believe, shock her into behaving sensibly - maybe even write this out and get her to sign it and/or record the conversation and show/play it to the GP in the hope that the GP will accept that your mum was playing games, knows she was and realises how daft she was ....??!!
sadly, it might be interpreted that the event does show that she no longer has capacity enough to understand the importance of what she is being asked to do, as no-one who did would 'play' such a daft game
it's a shame as not only has it jeopardised the finance & property POA, which can be salvaged (at a financial cost) by you applying to be her deputy (and contacting the OPG and DWP in the meantime to be her appointee to deal with immediate issues such as paying for her care - though hopefully, as much as possible is dealt with by direct debit) but it also means that you won't be able to apply to be her Attorney for health & welfare
however, if you are concerned that she is unsafe in her own home (I'm thinking of your comments on your other thread) and it would be in her best interests now to be cared for full time, as she 'no longer has capacity' you could contact her Local Authority Adult Services, explain the situation and request a best interest meeting be called to make decisions on her future care
if you do apply to be her Deputy, make sure you have included such things as acting for her to sell her house so that you don't later have to make a further application specifically for selling her property
as for financial support - should your mum stay in her bungalow and her other savings/assets reach the £23250 threshold, then the LA will be involved (you do have to contact them, it's not automatic) and will begin to part fund your mum's care fees - I assume (from the level of care you mention in the other thread) that she receives Attendance, and also a disregard of her Council Tax - should your mum move into a care home, she will be self-funding using her income, savings and the proceeds from the sale of the bungalow

it might be a good idea to chat things over with one of the AS helpline operators, as they have a lot of knowledge around POAs and may have contacts to direct you to
0300 222 11 22
Monday to Wednesday 9am – 8pm
Thursday and Friday 9am – 5pm
Saturday and Sunday 10am – 4pm

I hope you find a way to move forward
best wishes

PS just wanted to add that although you do need to have all this sorted out in the long run - right now, you can both continue as you always have as I doubt the GP will jump into action and start informing all and sundry that your mum no longer has capacity - so take some time to think things through - maybe check that your mum's finances can pretty much run themselves with her income, from whatever sources, being paid directly into a bank account and any bills being paid out by direct debit
 
Last edited:

Beate

Registered User
May 21, 2014
12,179
0
London
Can you get a friend of hers to be the certificate provider? You don't need the GP and they don't often like to be involved. Capacity can fluctuate so if a friend can get her to sign on a good day, then you're good to go. There is no database that registers what a GP thinks about her capacity so you don't have to worry about his refusal.
 

Rosettastone57

Registered User
Oct 27, 2016
1,855
0
Long story short - Filled in form, paid fee, downloaded paperwork, had to get doctor to sign it, Mum was spoken with all in agreement, told us who she wanted to have the LPA, doctor came, he asked her if she understood everything, she took a deep breath (it was at this point I knew she was going to be acting daft) "No I don't, come back next week and maybe I will know more" That was it doctor refused to sign stating she didn't have the capacity to understand what was going on. Sorry and goodbye! The trouble was she knew and knows what she has done. Now it is on her medical records and I don't know where to turn, she is having carers or caregivers for 6 hours a day which she is paying for, she is one of the unfortunate people who saved and paid into a system all there lives and now she is penalised and paying for her care. What can I do or she do to access her funds to pay for her care? After a year there will be only her bungalow left and no savings is she entitled to benefits or help? Also she was in a the process of changing her will, what would happen to that? Any help on these matters would be greatly appreciated. Apologies for being long winded.

We have this difficulty with my mother-in-law who was diagnosed about two years ago .However because she had always had paranoia and some mental health difficulties my husband and I decided we would introduce the idea of power of attorney gradually to her . It was also a trust issue with her particularly around money but we knew with her declining health and with the up-and-coming dementia diagnosis that we had no alternative but to go down the route of power of attorney.

I approached a neighbour as the certificate provider . I spoke to her first in private and explained what my husband and I were intending to do and asked if she would come in with me to speak to my mother-in-law gradually in a series of visits over period of weeks.

She would therefore come in with either my husband or I for a cup of tea with my mother-in-law and she would talk about her own problems with getting her own children to look after her thereby introducing the idea of power of attorney. This then gave the idea to my mother in law that power of attorney was a benefit not a hindrance. We then spoke to mother in law without the neighbour gradually introducing this topic again over a series of visits over a period of weeks and eventually she agreed that she would give us power of attorney for finances and health and welfare. So thankfully it was signed up with the neighbour as a certificate provider who would also know my mother-in-law well over a number of years. It's not easy but this was the only way we felt we could gain the trust of mother-in-law to get what we wanted. If we had simply introduced it with a GP we would never have got that
 

Kevinl

Registered User
Aug 24, 2013
6,384
0
Salford
This is exactly why I recommend people don't use a doctor or solicitor to get as an LPA certificate provider, a family friend or neighbour is just as acceptable for a POA and a whole lot cheaper.
How many people take their will to the doctors to get it witnessed?
K
 
I should have asked here first - Thank you everyone for all your help, I have spoken with my daughter and we are going to do a new one, but just to check with you first, how far does family go.? Is it immediate family or would a cousin (My Mums Uncle son) He is also one of the executors of her will. Or I have a friend who has known my Mum since my school days, she also works in the courts and has done so for 20 years. Which would be my better option.
Thanks once again for your help,
 

Shedrech

Registered User
Dec 15, 2012
12,649
0
UK
hi Jools62
'family' as such isn't important, it's that someone knows your mum well enough to be sure themselves that she understands, in straight forward terms, what she is doing and is signing of her own free will
sounds as though either of the people you mention would be good as Attorney or certificate provider- especially as your mum knows both of them, and she has certainly shown in the past that she trusts your cousin
 

jenniferpa

Registered User
Jun 27, 2006
39,442
0
I personally would go with a non-related person (even a cousin might be too close) as a certificate provider.
 

love.dad.but..

Registered User
Jan 16, 2014
4,962
0
Kent
I should have asked here first - Thank you everyone for all your help, I have spoken with my daughter and we are going to do a new one, but just to check with you first, how far does family go.? Is it immediate family or would a cousin (My Mums Uncle son) He is also one of the executors of her will. Or I have a friend who has known my Mum since my school days, she also works in the courts and has done so for 20 years. Which would be my better option.
Thanks once again for your help,
Go with the friend option...any family I think is open to query and I can't remember from doing Dads, don't you have to state relationship...friend of 20 years can't be questioned, you don't want another hiccup
 

SnowWhite

Registered User
Nov 18, 2016
699
0
Long story short - Filled in form, paid fee, downloaded paperwork, had to get doctor to sign it, Mum was spoken with all in agreement, told us who she wanted to have the LPA, doctor came, he asked her if she understood everything, she took a deep breath (it was at this point I knew she was going to be acting daft) "No I don't, come back next week and maybe I will know more" That was it doctor refused to sign stating she didn't have the capacity to understand what was going on. Sorry and goodbye! The trouble was she knew and knows what she has done. Now it is on her medical records and I don't know where to turn, she is having carers or caregivers for 6 hours a day which she is paying for, she is one of the unfortunate people who saved and paid into a system all there lives and now she is penalised and paying for her care. What can I do or she do to access her funds to pay for her care? After a year there will be only her bungalow left and no savings is she entitled to benefits or help? Also she was in a the process of changing her will, what would happen to that? Any help on these matters would be greatly appreciated. Apologies for being long winded.

I'm a bit ahead of you Jools - mum's bit of savings had gone on Care home fees and then we sold her house. We did POA at tail end of last year and a neighbour of Mums witnessed it. No problem.

Mum wanted to alter her will (well just change executors) and we had a faff about that as she was tired the day we saw the solicitor and he wasn't sure she understood. We arranged for her GP to go and assess her who then said he felt she didn't have capacity and he charged £255 for going! Back to the solicitor we went a few days later and she was fine and told him what her wishes were and he was happy she did have capacity that day.

I know exactly how you feel about your Mum having to sell her house, it's blinking awful but, I'm afraid, has to be done when they go in to care.
 

Shedrech

Registered User
Dec 15, 2012
12,649
0
UK
interesting - so 'family' and 'relative' is much wider than immediate family - apologies Jools62 - that's why TP is so helpful, someone knows or can at least warn that info given needs checking
 

Kevinl

Registered User
Aug 24, 2013
6,384
0
Salford
People who can’t be a certificate provider
The certificate provider must not be:

  • an attorney or replacement attorney for the LPA

  • an attorney or replacement attorney in any other LPA or enduring power of attorney that you’ve already made

  • a member of your or your attorneys’ families – including wives, husbands, civil partners, in-laws and step-relatives

  • an unmarried partner, boyfriend or girlfriend of yours or of any of your attorneys – whether or not they live at the same address

  • your business partner or one of your attorneys’ business partners

  • your employee or one of your attorneys’ employees

  • an owner, manager, director or employee of a care home where you live, or a member of their family

  • anyone running or working for a trust corporation appointed as an attorney in a financial decisions LPA"

  • I would say that a cousin definitely comes under my definition of a relative in fact I'd say they classed as a close relative in my book.

  • K
 

Shedrech

Registered User
Dec 15, 2012
12,649
0
UK
hi @Jools62
I appreciate this was a while ago, but I was interested and so contacted the OPG asking if a cousin could be a certificate provider - answer is no
their detailed answer was :
The certificate provider must be completely independent from the donors and attorney's families, it can not even be the girlfriend of a grandson therefore a cousin wouldn't be able to act as the certificate provider. If can be a friend or neighbour (1) he donor who has known them for two years or it could be a professional person (2) who is deemed to have the skills to be able to confirm that the donor understands what powers they are giving away and that they have not been coerced into making the LPA.
(1) the certificate provider is an independent party who has known the donor more than two years. Examples include, but are not limited to:

  • Friends
  • Hairdresser
  • Members of the same sporting / Hobby club
  • Members of the same social committee
  • Members of the same religious order
  • Neighbours
  • Old school friends
  • Old work colleague
(2) professionals accepted in the past have included:

  • Accountant
  • Audiologist
  • Bank Manager
  • Barrister
  • British Sign Language and English Interpreter
  • Care worker
  • Chartered Financial Planner
  • Chiropodist
  • Citizens Advice Bureau advisor
  • Commissioned Officer
  • Consultant surgeon
  • Conveyance Solicitor or Licensed Conveyancer
  • Court of Protection Visitor
  • Dentist
  • Estate Planning Manager / Wills & Estate Practitioner
  • Fee Earner in solicitor’s practice
  • Financial Advisor
  • General Practitioner (GP)
  • Hospital/Patient Liaison officer/ Hospital Administration officer
  • JP – Justice of the Peace
  • Legal Adviser
  • Legal Assistant
  • Legal Cashier
  • Legal Executive
  • Legal Secretary
  • Managing Director ( or Senior Manager ) of Effortless Relocation Ltd
  • Notary Public
  • Nurse
  • Occupational Therapist
  • Optician / Optometrist
  • Osteopath
  • Paralegal (who state that they deal in private client matters)
  • Pharmacist
  • Physiotherapist
  • Police Officer
  • Priest/Vicar
  • Prison Guard/Governor/ Warden
  • Probate clerk (who state that they deal in private client matters)
  • Probate executive (who state that they deal in private client matters)
  • Property Lawyer
  • Psychiatrist
  • Psychologist
  • Sheltered housing manager/worker
  • Social worker
  • Legal executive
  • Speech therapist
  • Stockbroker (who state that they deal with private client matters)
  • Tax Adviser
  • Trainee Solicitor
  • Retired Solicitor (unless struck off)
  • Trust & Estate Practitioner (does not have to be a member of S.T.E.P.)
  • Will Writer with or without their professional affiliation to any Will Writer Institution.
I thought I'd post this as it may be useful for any future questions
 

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